Intrusion on Seclusion in Jones v Tsige: The Role of Courts, the Value of Privacy, and the Difficulty of Erecting Fences
For over a century, common law courts have grappled with the question of whether or not to recognize a cause of action in tort for invasion of privacy. In 1937, Latham CJ held in Victoria Park Racing that “any person is entitled to look over the plaintiff’s fences and to what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence.” Recently, the Ontario Court of Appeal (OCA) unanimously held in Jones v Tsige, 2012 ONCA 32, that the time has come for the judiciary to finally help in the construction of fences.
The facts of the case were simple and quite scandalous: Tsige, a bank employee, had been looking at Jones’ banking records. Over a period of four years, Tsige had accessed her banking records more than 174 times, obviously contrary to bank policy. Although no information had been published, distributed, or recorded by the respondent in any way, she had access to information that included not only transaction details, but also address, date of birth, and marital status. The reason? Tsige was involved in an ongoing financial dispute with her partner.
This partner, in an interesting twist of fate, happened to be none other than Jones’ former husband. Accessing the banking records allowed Tsige to determine whether—and how much—child support was being paid between the former spouses. Not surprisingly, Jones was not too pleased when she found out about Tsige’s ongoing research and appealed to the courts to weigh in on whether people were really still entitled to look over fences to see “what goes on in the plaintiff’s land.”
Expanding the Common Law: The Tort of Invasion of Seclusion
In finding that Ontario law recognizes the right to bring a civil action for damages for the invasion of personal privacy, the OCA emphasized how deeply engrained the value of privacy has become in modern Canadian society. In the context of Charter jurisprudence, the Supreme Court of Canada has held that s.8 affords constitutional protection of a person’s reasonable expectation of privacy (see Hunter v Southam,  2 SCR 145). While the Charter does not apply directly to disputes between private parties, the common law must be developed in a way that is informed by its values. Furthermore, the right to privacy is enshrined in international instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
After canvassing cases and academic literature on the topic, Sharpe J. concluded that the right to privacy encompasses four torts “tied together by a common theme and name, but comprising different elements and protecting different interests”: (1) intrusion upon the plaintiff’s seclusion or solitude, (2) public disclosure of embarrassing private facts about the plaintiff, (3) publicity which places the plaintiff in a false light in the public eye, and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
The tort that was relevant to the case was the first: intrusion upon the plaintiff’s seclusion. The elements of this tort were set out as follows: first, the defendant’s conduct must be intentional, which includes recklessness; second, the defendant must have invaded, without lawful justification, the plaintiff’s “private affairs or concerns”; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
The OCA found that actual proof of harm to a recognized economic interest was not necessary in order to make out the tort of invasion of seclusion. In addressing the perpetual “floodgates” concern that looms on the horizon whenever a court expands the common law, Sharpe J. assured that “claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.”
Finally, on the issue of damages, the OCA held that since the plaintiff in such cases will not suffer from provable pecuniary loss, symbolic or moral damages will be awarded. Such damages should “be modest but sufficient to mark the wrong that has been done.” The OCA fixed the amount at $20,000. Applied to the facts, Sharpe J. found that Tsige had committed the tort of intrusion upon seclusion. In deciding the proper amount of damages, the OCA weighed countervailing consideration: on one hand, Tsige’s actions “were deliberate… and arose from a complex web of domestic arrangements likely to provoke strong feelings of animosity.” On the other hand, Jones had not suffered any economic loss or public embarrassment. Thus, the amount awarded was $10,000, the mid-point of the range identified.
The Role of the Courts
Whenever courts consider expanding the common law, judges tiptoe a line between cultivating the law in a way that aligns it with the demands of changing circumstance and refraining from stepping on the toes of the legislature as the democratically accountable branch. In this case, this tension was made apparent by the contrasting views of the Ontario Superior Court of Justice and the OCA. The former held that the existence of an intricate framework of privacy legislation in Ontario (see e.g. Freedom of Information and Privacy Act, RSO 1990, c F.31 and Personal Health Information Protection Act, 2004, SO 2004, c 3, among others) suggested that the legislature had turned its mind to the issue of privacy and chose not to extend protection to situations like the present.
The OCA held that recognizing a cause of action in the case would not overstep the bounds of appropriate judicial activity since it would only be an incremental change that would keep the law in pace with the changing needs of society. Furthermore, the OCA found it had a role to step in where the legislature failed to act in the name of ‘justice’: “most importantly, we are presented in this case with facts that cry out for a remedy.”
The Value of Privacy
Sharpe J. appropriately qualified the expanded scope of protection for privacy by recognizing that it must often be balanced against—and sometimes sacrificed for—other competing interests. The value that society places on privacy must co-exist with values of freedom of information and freedom of the press. The right to privacy, while important, is never absolute.
The Difficulty of Erecting Fences
Judicial decisions to step in to protect privacy interests seem to be critical at a time when people’s personal information is both widespread and accessible to others but also more difficult to protect by people’s own efforts. In today’s day and age, “routinely kept electronic databases render our most personal financial information vulnerable… sensitive information as to our health is also available, as are records of books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have traveled.” In today’s day and age, it is difficult to protect privacy simply by building a higher fence.